Appeal from a decision of the Civil Court of the City of New York, Kings County (John S. Lansden, J.), dated June 20, 2011, deemed from a final judgment of the same court entered June 20, 2011 (see CPLR 5512 [a]). The final judgment, after a nonjury trial, awarded possession to petitioner in a holdover summary proceeding.

ORDERED that the final judgment is reversed, without costs, and the petition is dismissed.

In this holdover proceeding, the petition and attached 30-day notice of termination allege that landlord terminated the tenancy "by monthly hiring" of Elizabeth Martin (occupant). At trial, petitioner testified that occupant had had no lease for the premises and that petitioner had not received any rent payments from her. Petitioner further established that the parties had litigated the issue of ownership of the premises in an action in the Supreme Court, Kings County, under index No. 25655/05, which action had been settled by a stipulation executed on March 18, 2010. The stipulation provided that, upon the execution of the deed to the premises and documents transferring ownership of the premises to petitioner, occupant would be paid an initial sum of $37,500, which had been placed in escrow. Should she fail to execute the documents, the New York City Sheriff was authorized to execute a deed to the premises and transfer documents. The stipulation further provided that, within 60 days of petitioner's deposit into escrow of a second $37,500 payment, occupant must remove from the premises. Should she fail to voluntarily remove, the Supreme Court would issue an order of ejectment directing the sheriff to remove her. Upon her voluntary or involuntary removal, the remaining $37,500 would be released to her, less the expenses for her removal.

In a decision after trial, the Civil Court awarded petitioner a final judgment of possession. Occupant's appeal from the decision is deemed to be from the final judgment (see CPLR 5512 [a]).

On appeal, occupant contends that this holdover proceeding does not lie because there was no landlord-tenant relationship between the parties. Petitioner responds that, because the Supreme Court stipulation specifically provided for a term by which occupant agreed to vacate, the stipulation itself created a landlord-tenant relationship between the parties. Consequently, he maintains, it was appropriate for him to commence a holdover proceeding under RPAPL 711 (1), which permits a holdover proceeding to be maintained where "the tenant continues in possession of any portion of the premises after the expiration of his term, without permission of the landlord." We reject petitioner's contention. The stipulation addressed itself to occupant's status as an owner in possession and did not expressly or impliedly create a landlord-tenant relationship. In any event, even were we to assume that a tenancy had been created by virtue of [*2]the stipulation, this holdover proceeding was predicated upon a termination notice alleging that there was a tenancy "by monthly hiring," which was not demonstrated at trial.

Accordingly, the final judgment is reversed and the petition is dismissed. Occupant's request to be restored to possession is denied without prejudice to renewal of the application in the Civil Court upon a proper motion.

Aliotta, J.P., Pesce and Weston, JJ., concur.
Decision Date: March 21, 2014